Judge steps aside in Biendl murder case

EVERETT — A Snohomish County judge stepped down Friday from the death penalty case against an inmate accused of killing a Monroe corrections officer.

Snohomish County Superior Court Judge Thomas Wynne said that repeated challenges to his fairness by attorneys for defendant Byron Scherf threatened to mire the case in appeals even before trial.

In a written order presented to lawyers by another judge, Wynne insisted he has been fair but he couldn’t ignore how repeated defense demands that he step down “have impaired this court’s ability to effectively manage the timely resolution” of the case.

Wynne has been a judge for 30 years, the past 19 on the Superior Court bench. Prior to taking on the Scherf case, he had only a one Superior Court case where a party formally sought his removal, the judge wrote.

Scherf’s lawyers have filed three demands that Wynne step down, the most recent made with the assistance of one of the state’s most-accomplished appellate attorneys in death penalty cases.

Wynne wrote that the case likely would be delayed for at least a year by pre-trial appeals if he continued to preside.

“To prevent further unnecessary cost to the public and delay in resolution of this case, it would now be in the best interest of justice for another judge, who will presumably not be confronted by allegations of prejudice at every turn, to assume responsibility for all further proceedings,” Wynne wrote.

Scherf, 53, is accused of strangling corrections officer Jayme Biendl at the Washington State Reformatory in January 2011. The repeat rapist had been serving a life term. He allegedly has admitted attacking Biendl because she’d angered him.

Trial is scheduled for September and key hearings — already delayed three times at the urging of defense attorneys — are scheduled for April.

It wasn’t immediately clear Friday what impact Wynne’s departure will have on the case schedule. Lawyers expect to begin addressing those questions at a hearing now set for Wednesday.

Wynne’s written notice of recusal was presented to lawyers by Michael Downes, the Superior Court’s presiding judge.

Judge Downes announced that he intended to assign the case to himself, but Scherf attorney Karen Halverson immediately filed an affidavit of prejudice against Downes — the only one she is allowed in the case. That automatically removed Downes from the case. Prior to becoming a judge in 2004, Downes was a longtime deputy prosecutor who handled murder cases, including some involving the death penalty.

With Downes blocked from ruling on the case, Judge Ellen Fair, the assistant presiding judge, appointed Judge George Appel to the job. Appel has been a Superior Court judge since 2008. Prior to that, he was a senior deputy prosecutor with experience in capital murder cases.

In court Friday, Appel told lawyers on both sides that he wanted to resolve scheduling questions.

Deputy Prosecutor Ed Stemler urged the judge to keep the April pre-trial hearings scheduled. Arrangements already have been made to summon more than 20 witnesses who are expected to testify about statements Scherf made after Biendl’s killing.

Halverson told the judge that it may not be possible to move ahead as scheduled. The defense has identified roughly 40 more witnesses it wants to question. Prosecutors also are making it difficult to interview detectives, she said.

Scherf earlier accused Wynne in a letter of being in “the prosecutor’s hip pocket” for refusing to revisit an earlier ruling that prosecutors had followed the law in announcing their decision to seek the death penalty.

Wynne refused to step down when Scherf’s lawyers said that inaction demonstrated a lack of fairness.

He again refused to step aside in February, when Scherf’s lawyers accused Wynne of misapplying the law in a 2006 case. In that case, they said, Wynne didn’t block a plea agreement that avoided another trial for convicted child killer Richard Clark. With support of the victim’s family, now-Prosecuting Attorney Mark Roe and other prosecutors opted to stop seeking death for Clark in exchange for the man’s admission of responsibility for the killing and agreement that he’d accept a life sentence without possibility of appeal or release.

In their third motion for Wynne’s removal, Scherf’s lawyers argued the judge had demonstrated prejudice by accusing them of unethical conduct and concocting a “bold-face fabrication” in asserting there was something improper in his handling of the Clark case.